# Adams v. Brown

> District Court, N.D. West Virginia · August 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10726831

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** August 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726831

## How later opinions describe it (automated extraction)

- finding that a party's objections to the magistrate judge’s R&R were not specific enough to preserve the claim for review

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling

TERRY L. ADAMS,
Petitioner,
V. CIVIL ACTION NO. 5:24-CV-51
Judge Bailey
R. BROWN, Warden, :
Respondent.

ORDER
The above-styled matter came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Mazzone [Doc. 22]. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
R&R on July 19, 2024, wherein he recommends that the Motion to Dismiss [Doc. 16] be
granted and that the petition [Doc. 1] be denied and dismissed without prejudice. For the
reasons that follow, this Court will adopt the R&R.
1. BACKGROUND’ & STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the

‘This Court fully adopts and incorporates herein the “Introduction” and “Background”
sections of the R&R. See [Doc. 22 at 1-3].

factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). Nor is this Court required to conduct a de novo review when the party makes
only “general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
In addition, failure to file timely objections constitutes a waiver of de novo review and:
the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). Pro se filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen(14)
days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules
of Civil Procedure. Petitioner timely filed his objections to the R&R and a Motion to
Reconsider on August 7, 2024. See [Doc. 24]. Accordingly, this Court will review the
portions of the R&R to which objection was filed under a de novo standard of review. The
remainder of the R&R will be reviewed for clear error.
ll. DISCUSSION
In his objections, petitioner first objects to the Government filing a “sur-reply.”
See [Doc. 24 at 1]. Petitioner argues that the Government “did not move for permission

to file’ a “sur-reply.” [Id.]. Petitioner asserts that the Government is “trying to get the last
word” and that the sur-reply should be stricken. [ld.].
On the next page of his objections and Motion to Reconsider, petitioner states how
in the Government's “sur-reply” conceded that petitioner is eligible to earn 365 days, the
maximum ailowable credit towards early release from custody. See [id. at 2].
This Court is perplexed. On the first page, petitioner requests this Court to strike
the Government's “sur-reply,” but no “sur-reply” was filed in the above-siyled case. |
Respondent initially filed a Motion to Dismiss [Doc. 16]. Magistrate Judge Mazzone then
issued a Roseboro Notice to petitioner, notifying petitioner of his right and obligation to file
a response to respondent’s Motion to Dismiss. See [Doc. 18]. Also in the Roseboro
Notice, Magistrate Judge Mazzone states that Respondent may file a Reply within fourteen
(14) days of the docketing of petitioner's Response. [Id. at 3-4]. Thus, petitioner's request
that this Court strike the Government's “sur-reply’ fails and insofar as this request is an
objection, the objection is OVERRULED.
Petitioner's next objection asks this Court “to uphold the Law, not to make
determinations on ‘placement’ and as to ‘ripeness.” See [Doc. 24 at 2-3].
First, petitioner requests that this Court not make determinations on “placement.”
As laid out in the R&R,
18 U.S.C. § 3621(b) gives the BOP authority to designate the place
of prisoner's imprisonment, and “a designation of a place of imprisonment
under this subsection is not reviewable by any court.” See also McKune

v. Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to
house inmates is at the core of prison administrators’ expertise.”).
[Doc. 22 at 7]. This Court will not make “determinations” on placement because those
determinations of whether to release a prisoner to an RRC or home confinement are not
reviewable. See [Doc. 22 at 7-8 (citing case law in support of this Court being unable to
review determinations)}.

Second, Article Ill of the United States Constitution limits thejurisdiction ofthis Court
to cases or controversies. One of the first tasks of a Court when addressing a case is to
evaluate whether the case has a viable legal issue left to resolve. See Powell
v. McCormick, 395 U.S. 486, 496 (1969). This Court is required to determine whether a
case is ripe for adjudication. Thus, petitioner's second objection is OVERRULED.
Furthermore, this Court agrees with Magistrate Judge Mazzone that “it appears there is no
viable legal issue left to resolve. .. .” See [Doc. 22 at 10]. In his objections and Motion to
Reconsider, petitioner again discusses and requests a change to his eligible date for home
confinement. See [Doc. 24 at 3-5]. As discussed in the R&R:
The distinction between a date to be released to supervised release
and a date to be eligible to home confinement may seem pedantic.
Unfortunately for petitioner, the distinction is an important one in the context
of a habeas petition.
With respect to home confinement, the FSA amended 18 U.S.C.
§ 3624(c)(2) to provide:

Home confinement authority. -— The authority under this
subsection may be used to place a prisoner in home
confinement for the shorter of 10 percent of the term of
imprisonment of that prisoner or 6 months. The Bureau of
Prisons shall, to the extent practicable, place prisoners with
lower risk levels and lower needs on home confinement for the
maximum amount of time permitted under ‘this paragraph.
18 U.S.C. § 3624(c)(2); First Step Act of 2018, § 602, 132 Stat. at 5238.
However, it is well established that an inmate has no constitutional

_ fight to be confined to a particular institution, Meachum v. Fano, 427 U.S.
215, 223 (1976), nor any “justifiable expectation” that he will be confined in
a particular prison. Olim v. Waukinekona, 461 U.S. 238 (1983).
18 U.S.C. § 3621(b) gives the BOP authority to designate the place
of a prisoner's imprisonment, and “a designation of a place of imprisonment
under this subsection is not reviewable by any court.” See also McKune v.
Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to
house inmates is at the core of prison administrators’ expertise.”). This Court
and others have thus found that determinations of whether to release a
prisoner to an RRC or home confinement are not reviewable. Winegar v.
Adams, No. 1:20-CV-246, 2021 WL 5629920, at *6 (N.D. W.Va. Nov. 3,
2021) (Mazzone, M.J.), report and recommendation adopted, No.
1:20-CV-246, 2021 WL 5629480 (N.D. W.Va. Nov. 30, 2021) (“with respect

to halfway house placement or home confinement, the petitioner is
requesting that this Court order the BOP to place her in an RRC for twelve
months or, in the alternative, place her on home confinement. This Court
does not have the authority to do so.”); Crum v. Young, No. 5:20-CV-00658,
2021 WL 2843835, at *6 (S.D. W.Va. Jan. 27, 2021) (Eifert, M.J.), report and
recommendation adopted Crum v. Young, No. 5:20-C¥-00658, 2021 WL
2434358 (S.D. W.Va. Jume 15, 2021) (“while the First Step Act provides
criteria for the BOP to consider when designating an inmate to a place of
imprisonment, it also states unequivocally that the BOP’s designation is not
subject to judicial review.”); United States v. Smith, No.
6:15-CR-00006-001, 2019 WL 4016211, at *2 (W.D. Va. Aug. 26, 2019)
(Moon, J.) (“While the Second Chance Act and the First Step Act expand the
BOP'’s authority to place prisoners, they do not vest placement authority in
this Court.”) (citations omitted); United States v. Lowe, No. 1:15CR11-1,
2019 WL 3858603, at *2 (M.D. N.C. Aug. 16, 2019) (Tilley, J.) (“under the
First Step Act, Lowe does not have a right to be placed on home
confinement or in a residential re-entry center; instead, the BOP has the
discretion to determine if those options are appropriate for Lowe.”);
Richardson v. Warden, Bennettsville FCI, No. CV 4:21-3230-JD-TER,
2021 WL 8323632, at *2 (D. S.C. Nov. 10, 2021) (Rogers, M.J.), report and
recommendation adopted as modified, No. 4:21-CV-03230-JD-TER, 2022
WL 1184038 (D. S.C. Apr. 21, 2022) (“To the extent Petitioner is requesting

relief of placement in home confinement under the First Step Act, the statute
vests the authority to place Petitioner in home confinement with the BOP, not
the courts.”) (citations omitted). Thus, insofar as petitioner now seeks relief
in the form of ordering the BOP to release petitioner to home confinement or
to an RRC, or to alter the date on which they list him as eligible to be
designated to either, this Court lacks the authority to issue such an order.
[Doc. 22 at 6-8].
Lastly, the remainder of petitioner’s objections “are so general or conclusory that
they fail to direct the district court to any specific error by the magistrate judge, de novo
review is unnecessary.” Green v. Rubenstein, 644 F.Supp.2d 723, 730 (S.D. W.Va.
2009) (Johnston, J.) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “When
only a general objection is made to a portion of a magistrate judge’s report-
recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review.” Williams v. New York State Div. of Parole, 2012 WL 2873569, at *2
(N.D.N.Y. July 12, 2012).
A party waives any objection to an R&R that lacks adequate specificity. See Mario
v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that a party's
objections to the magistrate judge’s R&R were not specific enough to preserve the claim
for review). Bare statements “devoid of any reference to specific findings or
recommendation . . . and unsupported by legal authority, [are] not sufficient.” Mario, 313
F.3d at 766. Pursuant to the Federal Rules of Civil Procedure and this Court’s Local Rules,

“referring the court to previously filed papers or arguments does not constitute an adequate
objection.” Id.; see also Fed. R. Civ. P. 72(b); LR PL P 12.
Petitioner cites to some “[a]greement from the Government— or Concedement □□□□□□□
the “purpose” of 2241s, cites three (3) Program Statements, and notes “FACTS —
Agreements.” These sections are devoid of any reference to specific findings made by
Magistrate Judge Mazzone in.the R&R. Thus, the objections are not sufficient and are
OVERRULED.
Ill. CONCLUSION
Aside from the arguments addressed herein, a de novo review of the record
indicates that the magistrate judge’s report accurately summarizes this case and the
applicable law. Accordingly, the magistrate judge’s report and recommendation [Doc. 22]
is hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s
report. Petitioner's objections [Doc. 24] are OVERRULED and his Motion to Reconsider
[Doc. 24] is DENIED AS MOOT. Respondent’s Motion to Dismiss [Doc. 16] is GRANTED
and the Petition [Doc. 1] is DENIED and DISMISSED WITHOUT PREJUDICE.
This Court further DIRECTS the Clerk to STRIKE this case from the active docket
of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein.
DATED: August 13. 2024.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726831. Public record. Not legal advice.